Monday, February 4, 2013

In Foxboro, there ain't no free lunch

By Bill Gouveia

It’s not easy being a selectman in Foxboro these days.  Having an NFL stadium in your small community is certainly prestigious and economically advantageous, but as the old saying goes:  “There ain’t no such thing as a free lunch.”

Town officials find themselves constantly forced to adapt to a quickly changing world, one private business is much better equipped to handle swiftly and efficiently.  That is most recently demonstrated in the pending lawsuit filed against both the Kraft Group and the town by a collection of folks who claim they were improperly held in custody within Gillette Stadium by Foxboro police.

The suit charges the town and Police Chief O’Leary with negligently detaining concertgoers without valid cause.  While neither police nor selectmen can comment on the lawsuit itself, officials have in the past defended the practice of taking patrons into protective custody when they appear to be a possible danger to themselves or others.  In the past the town and the stadium owners have been accused of not providing enough security or safety for those who attend events.

Kraft officials will not comment on whether or not they support the actions of Foxboro police inside the stadium.  The organization has an agreement with Foxboro that indemnifies the town against lawsuits arising from the granting of licenses for stadium events, with the exception of “negligence, gross negligence or willful misconduct of the town parties.”

Stadium owners are refusing the town’s request to be indemnified in this case, citing the charges of negligence or worse being alleged.  However, they are offering to provide the town with an attorney and pay that expense.  They are not agreeing to cover damages if the town or the chief loses the case.

Kraft Group spokesman Jeff Cournoyer said, “Our agreement with the town does not require us to indemnify the town in that scenario, but because we value our relationship with the town, we offered to defend them in the case.”

Selectman Chairman Jim DeVellis has a different view, arguing there has been no finding of negligence and thus the Kraft Group should be indemnifying the town against possible damages.  He added that Foxboro’s legal representatives are currently in discussion with Kraft Group lawyers over the matter.

Given the circumstances, it certainly appears the stance taken by the stadium ownership is reasonable.  The suit does allege willful negligence and misconduct by town personnel, albeit on stadium grounds during a licensed event.  The offer to pay for attorney fees relieves the town of any financial burden – unless the suit is found to have merit and negligence did occur.

Of course, the offer to defend is not totally unselfish by the Kraft Group.  They have a large stake in the outcome of the suit, and in many ways their interests and those of the town coincide.  If Foxboro prevails in the suit, that helps the Kraft organization.

But at some point, the interests of the two parties could possibly diverge.  That is why Foxboro officials must make certain that regardless of who is paying the bills, their eventual counsel will be 100 percent on their side.  Even if the Kraft Group writes the checks, there must be no question that counsel for the town and the chief must be prepared to possibly take actions not to the liking of the party actually paying them.

That is not unusual.  Town officials are often represented by counsel separate from the municipality in lawsuits, but paid through the city or town.  Sometimes their interests go in different directions.  I know – I have been a party to such a situation.

But to expect the Kraft Group to say they will pay any damages awarded as the result of any negligent conduct by town employees committed willfully while in their official capacity is just silly.  If that were the actual agreement, police officers and others would have complete immunity from any bad acts.  They could do anything they want, and stadium owners would have to bear the ultimate responsibility.

There has been no finding of any willfully negligent actions or behavior by any town entity charged in this suit.  As long as that remains true, Foxboro has nothing to worry about in their indemnification deal.

Bill Gouveia is a local columnist and can be emailed at and followed on Twitter at @Billinsidelook.

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